Do I have to take a breathalyzer test if the police ask me to?

breathalyzer-blog-syracuse-lawyersDo I have to take a breathalyzer test if the police ask me to? Most folks know that they have a right to refuse this test, and that is true. Many people are under the impression that refusing a breathalyzer test if they have been pulled over is a good move.

Lets clarify something first.  There are two breath tests you will likely be subjected to if suspected of driving while under the influence of alcohol.  The first test is the roadside test.  The second is the test done at the police station after being arrested.

The first roadside test should only be administered by the police if there are other indicators of DWI – such as a valid traffic stop, followed by possible odor, and standard field sobriety tests.  THIS ROADSIDE TEST IS NOT ADMISSIBLE AT TRIAL.  Should you take it?  Most likely the answer is yes. Regardless of the result, it will most likely not effect your case.

If you are arrested and brought down to the station for booking, you should be asked to blow into a calibrated machine.  This test is admissible and will be used to produce the actual amount of alcohol in your blood.  Should you take this test?  It depends.  How much have you drank (if anything)?  When did you take your last drink?  Have you been convicted or plead to any previous DUI or DWI charges?  These are some of the factors that come into play when making a decision.

You should know that refusing to take a breathalyzer test may result in an administrative suspension of your license by the NYS DMV for one year. This administrative suspension will prevent you from obtaining a hardship license while your case is pending in court and may result in an additional suspension of your license by the DMV beyond any suspension imposed by the court.You must think very carefully before refusing a breathalyzer test.

If you have refused a breathalyzer test, or been charged with DWI, don’t wait to get good advice. Call us at 315-701-2939 or CONTACT US ONLINE for a free initial consultation.

See related articles:

What are my rights if I am stopped, searched, or arrested by police?

Drugs in a car are Everyones Drugs- The Automobile Presumption

What you should know about Probable Cause

Felony and Guns

NY Room Presumption- Guns and Drugs belong to everyone



Whats the difference between a Hardship License and a Conditional License

There is a key difference in driving privileges regarding a hardship license and a conditional license. It’s important to understand the distinction between these two when charged with a DWI in the state of NY.

criminal-DWI-lawyer-david-zukherWhen charged with a DWI in the State of New York, there is an automatic administrative suspension of your license while the case is pending. This occurs at the initial appearance (arraignment). At that time, your attorney can help you make an application for a hardship license. This will allow you to drive to and from work, school, and to receive medical care for you or a family member. This is a to and from license only. If you drive for your job, this license is not appropriate for that situation.

30 days after you have been granted a hardship license, you may apply for a PCCL- Pre-conviction conditional license. This is done through the DMV. This license will allow you to drive for work until a resolution in the case is reached. Eligibility of this license is based on previous conditional licenses issued, and previous DWI charges.  It’s important when charged with a DWI that you have competent counsel experienced in this area of law to advise you of your rights and obligations in maintaining driving privileges. These are serious criminal charges that can impact every area of your life.  If you live in NY State, please feel free to call us at 315-701-2939 or CONTACT US ONLINE with any additional questions you may have.

Charged with DWI in NY

Charged with DWI in NY – Now What?

If you have recently been charged with a DWI you are probably quite concerned about how this is going to affect you, and the rest of your life. You should be. A DWI conviction on your record may stay there for your entire life. It may affect your ability to get certain types of jobs or professional licenses. The additional insurance costs alone will be a significant increase over previously paid premiums. Additionally, in NY a DWI charge is a jailable crime. The fines, penalties, and jail time increase with each conviction.

OK, so you got charged with a DWI, so now what?

The first thing to do is call an experienced DWI Lawyer immediately. This is not a time that you can afford bad advice. Your second cousin who is a real-estate attorney is not what you need right now. You need an attorney that is familiar with the DWI laws, all the possible defenses, and the courts in which you will be appearing. This person should be willing to sit down with you, explain your rights, answer your questions, and work with you to find the best possible defense for your situation. Be sure you are speaking with an experienced DWI attorney, and not an assistant or a call-screener. Your attorney should be accessible to you throughout your case, and keep you informed of any changes or decisions as they occur.

The urgency is speaking with a qualified attorney immediately is the help with a hardship license application which must be done at the first appearance (arraignment). Discovery motions should also be done within 45 of arraignment. These things sometimes make all the difference in the outcome of a case, or if the prosecution even has a case at all. A little over a month is not much time to find an attorney, meet with the attorney, have the attorney research, write and file any possible motions. Lastly, if you are ticketed for refusing the breathalyzer, the DMV will schedule a hearing within a couple of weeks and you need a lawyer at that hearing to protect your right. If you are not successful at that hearing, the DMV suspends your drivers license for 1 year regardless of the outcome of your case.

Important information you want to convey to your attorney to assist them in putting together the best possible defense for you is:

  1. The circumstances surrounding the stop of the vehicle. Why did they pull you over in the first place? At what time?
  2. The circumstances that led the officer to believe that you may be intoxicated
  3. Who was in the vehicle with you? According to Leandra’s Law, if driving while intoxicated with a person under the age of 15 in the vehicle, your charge is a felony. Even if it’s your first offense.
  4. What is your driving history?
  5. Was there an accident involved in your charges?
  6. Did you have a breathalyzer test or a blood test taken? At what time?
  7. What other Field Sobriety tests were performed, and the time frame in which they occurred.
  8. Were there any other witnesses?
  9. The time frame in which the entire incident occurred from initial stop to Miranda rights, and arrest.

If you have been charged with ANY driving while intoxicated, DWI or DWAI offense in NYS, you can talk with an attorney in our office for a consultation for FREE. Don’t hesitate to call us at 315-701-2939 or find us on the web at for a free initial consultation.


This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.